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Vanajakshamma and ors. Vs. P. Gopala Krishna - Court Judgment

LegalCrystal Citation
SubjectCriminal;Family
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 374 of 1969
Judge
Reported inAIR1970Mys305; 1970CriLJ1584
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488 and 489(2); Evidence Act, 1872 - Sections 50, 74, 77 and 114; Indian Divorce Act; Indian Penal Code (IPC), 1860 - Sections 494, 495, 497 and 498; Hindu Law; Hindu Marriage Act - Sections 7 and 17
AppellantVanajakshamma and ors.
RespondentP. Gopala Krishna
Appellant AdvocateJ.M. Riazuddin, Adv.
Respondent AdvocateB.V. Deshpande, Adv.
Excerpt:
.....and petitioners 2 and 3 are his children bom to him after his marriage with petitioner 1. 3. the learned magistrate believed the evidence of p. he has stated that he had carefully examined the evidence of these witnesses and he was satisfied that their evidence is convincing and they have spoken the truth. ) after going through the evidence, i am satisfied that the respondent married the 1st petitioner at tirupati and thereafter lived with her as his wife in different places and petitioners 2 and 3 were born to the respondent and petitioner 1 after their marriage. state of maharashtra, 1965crilj544 .in the said decision, their lordships have laid down that section 17 of the hindu marriage act makes the marriage between 2 hindus void if two conditions are satisfied: 12. it is contended..........prosecutions under sections 494, 495 and 498, indian penal code. the proviso to section 50 of the indian evidence act makes this clear. the learned counsel has strongly relied on : air1953ori10 and 1967 mad lj (cri) 311 (ker) in support of his said contention. it is also contended that as the 1st petitioner was a widow no specific ceremonies need be performed for a valid hindu marriage. the learned counsel has relied on : air1950mad777 in support of his contention that a hindu marriage need not take place in the presence of a priest, and the tying of a 'tali' in the presence of an idol is also one of the forms of a marriage known to hindu law. it is argued that the evidence given by petitioner 1 and her witnesses clearly makes out a case that the petitioner 1 was the wife of the.....
Judgment:
ORDER

M. Santosh, J.

1. This petition arises out of proceedings taken under Section 488, Criminal Procedure Code. The 1st petitioner before this Court claims to be the wife of the respondent and the petitioners 2 and 3 are said to be her minor children born to the respondent. The 1st petitioner claimed a total sum of Rs. 150/- per month towards maintenance of herself and her 3 minor children. After the enquiry the learned Magistrate dismissed the petition. The petitioners challenge the correctness of the said order passed by the learned Magistrate in this revision petition.

2. Sri Biazuddin, learned Counsel appearing on behalf of the petitioners, has contended that the learned Magistrate, after having accepted the evidence let in by the petitioners, was wrong in dismissing the petition. He has pointed out that the learned Magistrate has also rejected the evidence let in on behalf of the respondent, but yet strangely dismissed the petition. The learned Magistrate has also given a finding that it had been established in evidence that petitioner 1 was the kept mistress of the respondent. It has been argued that the standard of proof of marriage under Section 488, Criminal Procedure Code is different from that laid down either in the Divorce Act or in prosecutions under Sections 494, 495 and 498, Indian Penal Code. The proviso to Section 50 of the Indian Evidence Act makes this clear. The learned Counsel has strongly relied on : AIR1953Ori10 and 1967 Mad LJ (Cri) 311 (Ker) in support of his said contention. It is also contended that as the 1st petitioner was a widow no specific ceremonies need be performed for a valid Hindu Marriage. The learned Counsel has relied on : AIR1950Mad777 in support of his contention that a Hindu marriage need not take place in the presence of a priest, and the tying of a 'Tali' in the presence of an idol is also one of the forms of a marriage known to Hindu Law. It is argued that the evidence given by petitioner 1 and her witnesses clearly makes out a case that the petitioner 1 was the wife of the respondent and petitioners 2 and 3 are his children bom to him after his marriage with petitioner 1.

3. The learned Magistrate believed the evidence of P. Ws. 1 and 2 examined on behalf of the petitioners. He has stated that P. Ws. 1 and 2 appear to be disinterested and independent witnesses. Further, there was absolutely nothing on record to suggest that they are either interested in the petitioners or that they had any ill-will against the respondent. He has stated that he had carefully examined the evidence of these witnesses and he was satisfied that their evidence is convincing and they have spoken the truth. The learned Magistrate has also disbelieved the evidence of the witnesses examined on behalf of the respondent. He has held that they are all interested witnesses and persons working under the respondent. After reviewing the evidence, he has accepted the evidence that petitioner 1 and the respondent were living together as husband and wife for a long time, and he finds that petitioner 1 was the kept mistress of the respondent. But strangely enough, after giving such a finding, he has entirely dismissed the petition filed on behalf of the children for maintenance. With regard to the question whether petitioner 1 is the wife of the respondent, he states as follows:--

'If really R. W. 4 had married P. W. 3 at Tirupathi, there was no necessity for him to keep P. W. 3 in a separate house. On the evidence placed a presumption that there was a valid marriage cannot be justified.'

4-5. The first question for consideration in this case is whether the 1st petitioner is the wife of the respondent. The 1st petitioner has been examined as P. W. 3 in the case.

6. The learned Magistrate has also accepted the evidence of this witness (P. W. 1) that petitioner 1 and the respondent were living together for a number of years. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231, their Lordships of the Supreme Court has pointed out that continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may he drawn from long cohabitation is re-buttable. In the instant case, except denying totally and saying that he never lived with petitioner 1, the respondent has not in any way rebutted the presumption of marriage arising out of the continuous cohabitation as alleged by petitioner 1 and her witnesses.

7. (After discussion of some more evidence His Lordship proceeed.) After going through the evidence, I am satisfied that the respondent married the 1st petitioner at Tirupati and thereafter lived with her as his wife in different places and petitioners 2 and 3 were born to the respondent and petitioner 1 after their marriage.

8. It is contended by Shri Deshpande learned counsel appearing on behalf of the respondent, that there is no legal proof whatsoever that the respondent married petitioner 1. Petitioner 1 has not stated what are the ceremonies that were performed at the time of the alleged marriage. She has also not given any evidence about the custom of her community. He argues, there must be strict proof of marriage before maintenance can be awarded under Section 488, Criminal Procedure Code to the wife He has strongly relied on Bhaurao v. State of Maharashtra, : 1965CriLJ544 . In the said decision, their Lordships have laid down that Section 17 of the Hindu Marriage Act makes the marriage between 2 Hindus void if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act and (ii) at the date of such marriage either party had a spouse living. Their Lordships have pointed out that the word 'solemnized' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form'. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form' it cannot be said to be 'solemnized'. It is therefore essential for the purpose of Section 17 of the Act, that the marriage to which Section 491, Indian Penal Code applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom. Their Lordships have also laid down, prima facie, that the expression 'whoever ..... marries' in Section 494, Indian Penal Code must mean 'whoever ...... marries' validly. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the statutes of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.

9. Sri Deshpande has also relied on Deivanai Achi v. Chidambaram Chettiar, : AIR1954Mad657 . In the said decision, their Lordships have considered what are the essential ceremonies that are necessary to constitute a valid marriage under the Hindu Law. Their Lordships have referred to the various forms of marriage and the ceremonies that are necessary to be performed to constitute a valid marriage. Their Lordships have also referred to the essentials of a valid custom. The custom must be ancient, certain and reasonable and it cannot be enlarged beyond the usage by parity of reason since it is the usage that makes the law and not the reason of the thing.

10. The petitioner No. 1 has stated that she got married to the respondent at Tirupa-thi. She has not been asked what were the ceremonies that she underwent during the said marriage. There is no evidence to show that she has not undergone the ceremonies necessary for a valid marriage. In the notice. Ext. P-2, given by her to the respondent, she has stated that she has undergone the marriage according to the religious rites. In the Supreme Court decision mentioned above : 1965CriLJ544 , their Lordships were considering a case of prosecution for bigamy under Section 494, Indian Penal Code and in that context their Lordships held that the prosecution should prove that the marriage has been duly solemnized. It has to be remembered that proceedings under Section 488, Criminal Procedure Code are summary in nature, meant to prevent vagrancy. The standard of proof of marriage in proceedings under Section 488, Criminal Procedure Code need not be so high as required in prosecutions for bigamy or proceedings under the Divorce Act. In this connection, reference may made to the proviso to Section 50 of the Indian Evidence Act. Section 50 reads as follows:--

'When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.'

'Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act or in prosecutions under Sections 494, 493, 497 or 498 of the Indian Penal Code.'

Illustration (a) to the above Section says:--

'The question is, whether A and B were married. The fact that they were usually received and treated by friends as husband and wife is relevant.'

It is pertinent to point out that the proviso does not refer to proceedings under Section 488, Criminal Procedure Code. It only says that such opinion shall not be sufficient to prove marriage in proceedings under the Indian Divorce Act or in prosecutions under the Indian Penal Code for bigamy, etc.

11. In : AIR1953Ori10 , Narasimham, J., (as he then was) has pointed out that Section 488, Criminal Procedure Code is not included in the proviso to Section 50 of the Evidence Act, Hence, for proving a marriage in proceedings under Section 488, Criminal Procedure Code, the standard of proof need not be so high as required in proceedings under the Indian Divorce Act or in prosecutions under Sections 494, Indian Penal Code, His Lordship observed that even an opinion expressed by conduct of persons who had special means of knowledge on the subject, may suffice to prove the fact of marriage in a proceeding under Section 488, Criminal Procedure Code.

12. It is contended by Sri Deshpande that the said Orissa decision may not be a good law in view of the later decision of the Supreme Court referred to earlier, i.e., : 1965CriLJ544 . He also contends that after the Hindu Marriage Act came into force, the requirements laid down in Section 7 should be fully complied with to prove a marriage. As already pointed out, the Supreme Court decision dealt with the case of a prosecution for bigamy and did not consider the question of proof of marriage arising under Section 488, Criminal Procedure Code, Section 50 of the Indian Evidence Act and the proviso stand unaltered. It therefore follows that the strict proof required for proving a marriage in a criminal prosecution or in proceedings under the Divorce Act, is not necessary in a summary proceeding under Section 488, Criminal Procedure Code. It may be pointed out that even though the Criminal Court may come to the conclusion in a proceeding under Section 488, Criminal Procedure Code that the parties are husband and wife, if a Civil Court gives a different finding on the point, the Criminal Court should alter its finding. In this connection, it is pertinent to point out Sub-section (2) of Section 489, Criminal Procedure Code which reads as follows:--

'Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488, should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.'

This clearly shows that the finding given by the learned Magistrate is not final and if there is a decision of a competent Civil Court, the Magistrate should cancel the order or vary it.

13. After the abovementioned decision of the Supreme Court, in Bebi Bai v. Y, Japamony 1967 Mad LJ (Cri) 311 (Ker), the Madras High Court held that in a proceeding under Section 488, Criminal Procedure Code, the standard of proof of marriage need not be so high as required either in a proceeding under the Indian Divorce Act or in a prosecution under Section 494, 495, 497 or 498, Indian Penal Code. Thus, even opinion expressed by conduct of persons who had special means of knowledge on the subject may suffice to prove the fact of marriage in a proceeding under the Section.

14. The learned Magistrate has not applied his mind properly to the question of marriage of petitioner 1 with the respondent. The reasons given by him for coming to the conclusion that there was no valid marriage between them cannot be supported. The finding given by the learned Magistrate is as follows :--

'If really R. W. 4 had married P. W. 3 at Tirupathi, there was no necessity for him to keep P. W. 3 in a separate house. On the evidence placed a presumption that there was a valid marriage cannot be justified.'

I accept the evidence of petitioner 1 that the respondent married her at Tirupathi. This evidence of petitioner 1 is corroborated by the evidence of P. W. 2. There is no reason to reject tbe evidence given by these two witnesses. The fact that the respondent married the 1st petitioner at Tirupathi is also set out in the registered lawyer's notice, Ext. P-2, sent by petitioner 1 to the respondent. As already pointed out, though the respondent received the same, he did not send any reply denying the facts mentioned therein that he had married petitioner 1 at Tirupathi.

15. The next question for consideration is whether it has been proved that petitioners 2 and 3 are tbe children of the respondent, born to him after bis marriage with the 1st petitioner. Taking first the case of petitioner No. 2, the 1st petitioner in her evidence has stated that the 2nd petitioner was horn after her marriage with the respondent, when they were Jiving together in Mariammanahalii. P. W. 1 has also been examined to prove this fact. P. W. 1 is the midwife residing at Mariammanahalli. She has stated that about 6 years back, the respondent was residing in Mariammanahalli and e was working as a railway contractor. He was in her village for 3 years. He had kept the 1st petitioner in a separate house there and they were living there together. She has also stated that she attended on the 1st petitioner when she gave birth to the second petitioner. The respondent had sent for her before the delivery and the respondent was in the bouse at that time. She has also stated that the respondent paid her charges. She has further stated that even after the birth of the 2nd petitioner, petitioner 1 and the respondent were living together for one more year in the said village. The evidence given by P. W, 1 has not at all been shaken in cross-examination. The learned Magistrate who had the benefit of seeing P, W. 1 in the box has held that she is an independent and disinterested witness. He has also stated that there is absolutely nothing on record to show that P. W. 1 was in anyway interested in the 1st petitioner or that she bore any ill-will towards the respondent. The learned Magistrate has held that the evidence given by P. W. 1 is convincing and that she has spoken the truth. It may be pointed out that P. W. 2, whose evidence the learned Magistrate has accepted, has also stated that the 1st petitioner and the respondent were living as husband and wife in Mariammanahalli. He has further stated that they were so living together for 3 years in Mariammanahalli and for 2 years in Bom-manahalli.

16. The evidence with regard to the birth of petitioner 3 to the respondent is again spoken to by petitioner 1. She has stated that the third petitioner was born in Bellary in the Government Women's Hospital. She has also produced Ext. P-1 the extract of the birth register relating to the birth of the third petitioner. Ext. P-1 is the certified copy of the extract from the Register of Births, registered in the Bellary Municipality during the month of July, 1966. In the said extract, the name of the mother is given as Vanajakshiamma (1st petitioner) and the name of the father is mentioned as Gopala krishna (respondent). The place of birth is mentioned as Government Women and Children Hospital, Bellary. There cannot bo any doubt that Ext. P-1 is a public document and as per Section 77 of the Indian Evidence Act, certified copy of a public document may be produced in proof of the contents of the public document. From the evidence of petitioner 1 and Ext. P-1, it can be reasonably concluded that petitioner 3 was born to the respondent after his marriage with petitioner 1 when they were living at Bellary. I have therefore no hesitation in coming to tho conclusion that the 2nd and 3rd petitioners are the children born to the respondent after his marriage with the 1st petitioner at Thiru-pathi.

17. The next question for consideration is as to what rate of maintenance petitioners 1 to 3 are entitled. Petitioner 1 in her evidence has stated that the respondent is a contractor, that he owns a house and 10 acres of land. She has also stated that he owns a lorry and he earns on an average Rs. 700A to Rs. 800/- per month. She has also stated that she requires Rs. 150/- per month for their maintenance. The respondent in his cross-examination has admitted that he has got 14 acres of land in his own name at Kollegal. He has also admitted that he is doing contract work along with his elder brother. He has admitted that they had one lorry, but stated that they have now sold it. He has also admitted that they pay income-tax. The respondent stated that when there is work he gets about Rs. 200/- to Rs. 300/- per month from the contract work. Though e admitted that he has got 14 acres of land, he has stated that he gets an income of only Rs. 100/- per year from the land. Taking the admission of the respondent himself, it shows that he has got 14 acres of land in his own name. He has also admitted that ho is doing contract work and paying income-tax. Taking the evidence let in by the parties with regard to the income of the respondent, I am of opinion that it is reasonable to award a maintenance of Rs. 35/-(Rupees thirty five only) per month to the 1st petitioner and Rs. 25/- (Rupees twenty five) each, per month to the 2nd and 3rd petitioners, from the date of the petition.

18. In the result, for the reasons mentioned above, I allow this revision petition, set aside the order passed by the learned 1st Additional Munsiff-Magistrate, Bellary and award maintenance at Rs. 35/- per month to the 1st petitioner, and at Rs. 25/- each per month to the 2nd and the 3rd petitioners from the date of the petition.

19. Revision allowed.


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